Fifth Third Mtge. Co. v. SardellaFifth Third Mtge. Co. v. Sardella
D E C I S I O N
Rendered on December 15, 2011
Lerner, Sampson & Rothfuss, Stacy L. Hart and Ellen L. Fornash, for appellee.
Duncan Simonette, Inc., and Brian K. Duncan, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Defendant-appellant, Linda Sardella (“appellant“), appeals from the March 16, 2011 judgment of the Franklin County Court of Common Pleas, wherein the trial court adopted the magistrate‘s decision denying appellant‘s motion to vacate and/or set aside judgment. For the following reasons, we affirm.
{¶2} The present appeal stems from an action filed on March 24, 2010 by Fifth Third Mortgage Company1 (“appellee“), seeking to foreclose upon a mortgage secured by
{¶3} The record reflects that, on April 1, 2010, appellant‘s brother, Phil Harris, accepted service of the summons and complaint at appellant‘s residence located at 3685 Abney Road, Columbus, Ohio 43207. Further, the magistrate‘s decision indicates that, at the evidentiary hearing regarding appellant‘s
{¶4} Additionally, the magistrate‘s decision also indicates that, on March 31, 2010, appellee perfected service of the summons and complaint upon appellant via certified mail. We note that, although the record does not contain a scanned copy of the return of certified mail service upon appellant, the certified copy of the docket does
{¶5} On May 11, 2010, appellee filed a motion for default judgment. On May 12, 2010, the trial court granted appellee‘s motion, and on May 14, 2010, the trial court journalized its judgment and decree in foreclosure. Further, on May 26, 2010, the trial court issued an order of sale for 3685 Abney Road, Columbus, Ohio 43207. On July 13, 2010, appellee filed a notice of sheriff‘s sale informing all parties that the sale would take place on August 27, 2010 at 9:00 a.m. On August 11, 2010, appellee filed its proof of publication in The Daily Reporter regarding the details of the pending sale. On August 31, 2010, the trial court ordered the Franklin County Sheriff to appraise, advertise, and sell 3685 Abney Road, Columbus, Ohio 43207.
{¶6} On August 27, 2010, appellee purchased 3685 Abney Road, Columbus, Ohio 43207 at sheriff‘s sale for $58,000, and, in a journal entry filed September 15, 2010, the trial court approved and confirmed the sale.
{¶7} On November 5, 2010, appellant filed a motion pursuant to
{¶8} On November 15, 2010, appellee filed a reply in opposition to appellant‘s
{¶9} On December 1, 2010, the trial court journalized an entry referring this matter to a magistrate for an oral hearing because appellant claimed that she did not receive service of the complaint, the motion for default judgment, or notice of the sheriff‘s sale. On February 22, 2011, a magistrate of the trial court held an evidentiary hearing and, subsequently, on February 24, 2011, issued a decision denying appellant‘s motion. In his decision, the magistrate found that appellant did not meet the criteria set forth in
{¶10} On March 16, 2011, the trial court adopted the magistrate‘s decision, stating that, pursuant to
{¶11} On March 25, 2011, appellant filed a timely notice of appeal setting forth the following assignments of error for our consideration:
- THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY SERVE DEFENDANT AND/OR THE UNDERSIGNED COUNSEL WITH A COPY OF THE MAGISTRATE‘S FEBRUARY 24, 2011 DECISION; THEREBY DEFENDANT WAS NOT AFFORDED THE OPPORTUNITY TO OBJECT TO SAID DECISION PRIOR TO THE COURTS [SIC] DECISION/ENTRY DATE MARCH 16, 2011.
- ASSUMING ARGUENDO THAT THIS COURT FAILS TO UPHOLD APPELLANT‘S FIRST [ASSIGNMENT] OF ERROR, THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS MAY 12, 2010 JUDGMENT ENTRY BASED ON CIV. R. 60(B)(1) AND (5).
- ASSUMING ARGUENDO THAT THIS COURT FAILS TO UPHOLD APPELLANT‘S FIRST ASSIGNMENT OF ERROR, THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE THE SEPTEMBER 15, 2010 CONFIRMATION OF SALE.
{¶12} For ease of discussion, we address appellant‘s assignments of error out of order beginning, in part, with appellant‘s second assignment of error. At this time, we will only address that part of appellant‘s second assignment of error regarding appellant‘s allegation with respect to not receiving service of the underlying complaint. (See appellant‘s brief, 6.) We address this first because determination of whether appellant was served with the complaint may be dispositive.
{¶13} In her brief, appellant alleges that she “did not receive and/or understand the underlying [c]omplaint,” and, as evidence, attaches an affidavit from her
{¶14} Here, appellant states that she “did not receive and/or understand the underlying complaint,” but does not provide any further discussion to clarify these conflicting allegations. (Emphasis added.) Obviously, the legal implications of these two allegations drastically differ with regard to the disposition of this matter. As stated above, the magistrate found that appellant testified that she received notice from the court and that her brother (Phil Harris), accepted the summons at appellant‘s residence and gave it to her. (See Magistrate‘s Decision, 3-4.) Further, the personal service return reflects that, on April 1, 2010, Phil Harris, resident, was served with the foreclosure complaint. In addition, the magistrate found that, on March 31, 2010, appellee perfected service of the summons and complaint upon appellant via certified mail. Based upon the foregoing, we agree with the magistrate‘s conclusion that appellant was properly served with the summons and underlying complaint.
{¶16}
A magistrate‘s decision shall be in writing, identified as a magistrate‘s decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate‘s decision shall indicate conspicuously that a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party timely and specifically objects to that factual finding or legal conclusion as required byCiv.R. 53(D)(3)(b) .
{¶17} In addition,
Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party has objected to that finding or conclusion as required byCiv.R. 53(D)(3)(b) .
{¶18} Further, ” ‘[a] trial court‘s failure to comply with
{¶19} Appellee cites to Watley v. Dept. of Rehab. and Corr., 10th Dist. No. 06AP-1128, 2007-Ohio-1841, in support of its argument that, pursuant to
In the unusual circumstance that service of a magistrate‘s decision is not made, or is served in an untimely manner,
Civ.R. 53(D)(5) provides that either party may, “for good cause shown,” move the trial court to set aside the magistrate‘s decision or to extend the time for filing objections to the report.
” ‘Good cause’ includes, but is not limited to, a failure by the clerk to timely serve the party seeking the extension with the magistrate‘s order or decision.”
{¶21} In the present matter, unlike Watley, the record does not reflect that the clerk of courts served the parties with copies of the magistrate‘s February 24, 2011 decision. However, the magistrate‘s decision indicates that copies were sent to appellant‘s counsel by e-mail and also lists a physical address for appellant‘s counsel, along with physical addresses for appellee‘s counsel and the assistant prosecuting attorney. (Magistrate‘s Decision, 9-10.) Appellant‘s counsel claims that he never received a copy of the magistrate‘s decision in order to file timely objections. (See Motion to Stay Foreclosure Proceedings, Exhibit A, Affidavit of Brian K. Duncan.) Therefore, we must determine whether the alleged service violation prevented appellant from filing objections to the magistrate‘s decision and whether the trial court was able to conduct an independent analysis of the magistrate‘s decision.
{¶23} Second, we find that the alleged issues regarding service did not prevent the trial court from conducting an independent analysis of the magistrate‘s decision. In its decision and entry, the trial court specifically stated that “[u]pon a careful review of the record, the Court finds that there are no errors of law or other defects in the Magistrate‘s Decision.” (Decision and Entry Adopting the Magistrate‘s Decision, 2.) Further, this court cannot cite to any evidence suggesting that the trial court did not carefully review the record as stated in its decision and entry. Therefore, based upon the trial court‘s contention that it carefully reviewed the record, we believe that the trial court conducted an independent analysis of the magistrate‘s decision.
{¶24} We note that in Roberts v. Skaggs, 1st Dist. No. C-070298, 2008-Ohio-1954, the First District Court of Appeals also interprets
{¶25} In its discussion regarding
The Tenth Appellate District, in Watley v. Dept. of Rehab. & Corr., suggested the new provision provides an adequate remedy to correct a defect in the clerk‘s service of the magistrate‘s decision and that a party‘s failure to move for an extension of time to file objections after learning of the magistrate‘s decision always precludes a party from alleging defective service on appeal.
Id. at ¶20. However, the First District stated that it is “reluctant to read
{¶26} Also, like in Watley, instead of moving the trial court, pursuant to
{¶27} Appellant‘s first assignment of error is overruled.
{¶28} Based upon the foregoing, pursuant to
{¶29} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, the Supreme Court of Ohio addressed the application of the plain error doctrine in civil matters, stating, “[i]n applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice.” Therefore, “appellate courts must proceed * * * only ‘* * * where the error seriously affects the basic fairness, integrity, or public reputation of the judicial process itself.’ ” Skydive at ¶13, citing Unifund CCR Partners v. Hall, 10th Dist. No. 09AP-37, 2009-Ohio-4215, ¶22, quoting Goldfuss at 121. “Indeed, the plain error doctrine implicates errors in the judicial process where the error is clearly apparent on the face of
{¶30} In her second and third assignments of error, appellant raises the following arguments: (1) the trial court erred in failing to vacate its May 12, 2010 judgment based upon
{¶31} Based upon the foregoing, this matter does not represent an extremely rare case where exceptional circumstances require the application of the plain error doctrine in order to prevent a manifest miscarriage of justice. Therefore, we do not find that the trial court committed plain error in its February 24 and March 16, 2011 decisions.
{¶32} Notwithstanding the fact that appellant failed to allege plain error, we briefly address the remaining arguments set forth in appellant‘s second assignment of error, as well as the arguments set forth in appellant‘s third assignment of error.
{¶34} In her third assignment of error, appellant argues that the September 15, 2010 confirmation of sale should be vacated because: (1) the sheriff‘s sale was not held in accordance with
{¶35} In his decision, the magistrate found that appellant:
[C]ompletely ignored and disregarded the Court and judicial system for nearly six months. Such neglect is inexcusable. Likewise [appellant] has not shown mistake, inadvertence, or surprise. That is, [appellant] has not shown that she misunderstood the summons that clearly stated an answer
was due within 28 days from service or that she misunderstood that default judgment would follow upon failure to answer as stated on the face of the Summons. Nor did she claim inadvertence or surprise. Accordingly, this Court finds [appellant] has not met the threshold requirement for relief pursuant to Civ.R. 60(B)(1) .
(Magistrate‘s Decision, 7.) Further, the magistrate found that appellant failed to set forth a meritorious defense because, by her own admission, appellant had missed a mortgage payment and, at the evidentiary hearing, appellant failed to demonstrate: (1) any irregularity with the sheriff‘s sale, (2) any error in the court‘s default judgment entry, and (3) any error in the court‘s confirmation of sale. (Magistrate‘s Decision, 7.) Finally, the magistrate found that, pursuant to
{¶36} We agree with the magistrate‘s conclusions regarding appellant‘s failure to meet the threshold requirements for relief pursuant to
{¶37} Appellant‘s second and third assignments of error are overruled.
{¶38} For the foregoing reasons, all three of appellant‘s assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and TYACK, JJ., concur.
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